Research On The Commercial Activity Exception Under State Immunity

State immunity is one of the significant international principles,due to the independence and equality of sovereignty,no states shall exercise jurisdiction and execution over other states’act and property.With the development of the global economy and close relations between the states,states gradually involved in the commercial trading in the form of private entity,absolute immunity turns to restricted immunity step by step.According to the theory of restricted immunity,state’s act shall be divided into sovereign act and non-sovereign act,state enjoys no immunity when it carries out non-sovereign action such as commercial activity,commercial activity exception is the core content of restricted immunity.It has been a legislation trend to add clause stipulating that state enjoys no immunity when it’s engaged in commercial activity,but the judicial practice reflects the plight of application of commercial activity exception,the divergence and conflict in state immunity remain unsolved.It is not rare that Chinese governments and SOEs are sued in American territory,from“Scott v.People’s Republic of China”“Jackson v.People’s Republic of China”in the early years to“Yang Rong,et al.v.Liaoning Province Government”“Big Sky Network Canada,Ltd.v.Sichuan Provincial Government”“Morris v.People’s Republic of China”“Walters v.Industrial&Commercial Bank of China”in the beginning of 20~thh century,then to the cases involved Chinese SOEs like Aviation Industry Corporation of China,China New Building Materials Group,Bank of China in recent years.When research on the cases,we will find that the core of the cases is the application of commercial activity exception.Commercial activity exception is stipulated in the Foreign Sovereign Immunities Act(FSIA)1605(a)(2),because of the defect of legal text,lacking clear introduction and explanation of the terms“commercial activity”“based upon”“direct effect”,the application standard is not unified,the judge is given too much discretion and the judicial practice is kind of confusing,there may exist unpredictable legal risk and unfair judgement to the defendant.It is better to research on the relating practice of the US court,handle the application of the immunity theory in the judicial operation,for the purpose of taking flexible strategies and finding some feasible thinking.It seems like the commercial activity exception is the core of the immunity conflict between China and America,but the origin of the controversy is the attitude towards state immunity between both.As an independent sovereign state,we shall envisage and solve the problem brought out from the divergence of state immunity.We are entitled to take retaliatory measures when other states deprive us of our immunity,but considering our Great-nation image and international relations,we shall take some peaceful and reasonable measures to solve or eliminate the conflicts.The thesis stands on the ground of the sovereign interest of our country,combines the theory and practice of state immunity,analyses deeply on the commercial activity exception issues under state immunity,seeks for the reasonable and applicable method to deal with the lawsuits and improve the system of state immunity.The thesis is divided into three chapters:The first chapter discusses the basic theory and practice situation of commercial activity exception.It deeply analyses the origin and development of state immunity,also the legislative and judicial practice of commercial activity exception.The second chapter analyses the focus issues in the application of commercial activity exception through the lawsuits involving Chinese government and SOEs.The content includes the identification of“commercial activity”“based upon”“direct effect”.Put forward the thinking and strategies about dealing with the lawsuits from the micro aspect,combining the practical operation and latest developments in America.The third chapter shows some proposals about solving the conflicts in state immunity.Considering the international trends and national conditions,we shall take some flexible measures to solve the divergence and conflict,change the passive jurisdictional practice,and improve the state immunity system when the condition is complete,for the needs of protecting the native enterprise and private individuals.